11 Misc. 387 | New York Court of Common Pleas | 1895
The notice of appeal to the general term of the court below purports to be also an appeal from an order denying a new trial. But no such order is mentioned in the judgment, or included in the judgment roll, or printed in the record. This being the case, the present appeal brings up for review the exceptions and the judgment only. McRichard v. Flint, 1 N. Y. St. Rep. 608; Railroad Co. v. Ebling, 100 N. Y. 98, 2 N. E. 878; Matthews v. Mayberg, 63 K. Y. 656. The action was brought by the plaintiff as assignee of a certain claim of $250 for legal services claimed to have been rendered by the law firm of Bullard & Shannon to the defendant. The defendant claimed that these services were rendered under an agreement between him and the assignors of the claim that they should receive $250 for such services if successful in defending the action in which they had been retained, but if unsuccessful they should receive, at most, a merely nominal sum, and also that the plaintiff was not the real party in interest, but that Bullard & Shannon were, or,
“It is no answer to the views above presented that the rules will permit a transfer to mere nominal parties to avoid the effect of admissions made previously. When such is the fact, there is no change of ownership. The party by whom the transfer is made is still the party in interest, and his declarations are clearly admissible.”
See, also, Von Sachs v. Kretz, 72 N. Y. 553.
Where the vendor, after the sale, still continues in possession, exercising acts of ownership over the property, thus raising the presumption that the sale was fraudulent,” the declarations of the vendor are admissible against the vendee. Flannery v. Van Tassell, 127 N. Y. 633, 27 N. E. 393; Loos v. Wilkinson, 110 N. Y. 210,18 N. E. 99. When the question as to the admissibility of these declarations arose, it was for the trial court to determine whether the evidence then given was sufficient to raise a presumption, or to authorize the jury to find, that the partner Shannon was at the time of the making of the declarations so interested in the claim as to render his declarations admissible. And, even if the evidence then was not sufficient, appellant cannot now claim no sufficient foundation for their admission has been laid. He pointed out no such objection at the time. After these declarations had been received in evidence, further testimony was given by the respondent, without objection, tending to show that at the time of such declarations the partner Shannon was still interested in the claim, and the actual owner of a part of it, and after this was received in evidence no motion was made by the plaintiff to strike out any part of the testimony. So that, if there was not sufficient evidence at the time the declarations were admitted, other evidence was afterwards adduced which, in our judgment, cured it; and after the introduction of such evidence the plaintiff failed to move to strike it out, as he should have done. Vinegar Co. v. Schlegel, 143 N. Y. 544, 38 N. E. 729; Stouter v. Railroad Co., 127 N. Y. 661, 27 N. E. 805. If the plaintiff, after the evidence was all in, deemed it insufficient to establish present interest in Shannon